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Schank v. Schank

November 19, 2007

BARBARA L. SCHANK, PLAINTIFF-RESPONDENT,
v.
BRUCE W. SCHANK, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, FM-14-1521-98.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 13, 2007

Before Judges Lintner and Sabatino.

In this matrimonial case, defendant Bruce W. Schank ("the father") seeks review of two aspects of post-judgment orders that the Family Part issued on December 1, 2006. The father specifically appeals (1) the effective dates specified for the emancipation of the parties' two older children, and (2) the court's directive that he reimburse plaintiff Barbara L. Schank ("the mother") $5,824.87, representing one-half of sums the mother had previously expended in educational costs for the oldest child. We affirm.

We need not dwell at length on the chronology of this protracted case. By way of summary, the parties were divorced on May 4, 1999. As part of the negotiated Final Judgment of Divorce ("FJD"), the mother obtained primary residential custody of the parties' three children: a daughter born in October 1985, a son born in June 1988, and another son born in June 1993. The FJD provided that the father would pay the mother weekly child support, payable through the Probation Department. The FJD also specified that the parties would "share in the undergraduate college costs of the children in accordance with the financial ability and assets at the time which the children are prepared to enter college."

In the fall of 2006, the father filed a post-judgment motion in the Family Part seeking, among other things, to emancipate the two older children. The motion was predicated on the father's understanding that his daughter, who had already reached the age of majority in October 2003, had ended her college and other post-secondary studies at least as of February 2006, and that his middle child had graduated from high school in June 2006 and did not thereafter enroll in college.

After the mother was served with the father's motion, she retained counsel and filed a cross-motion. Her cross-motion sought, among other things, a contribution from the father towards their daughter's incurred expenses for her post-secondary studies at community college and at a trade school. Numerous other items of relief were sought by the parties, none of which bear on the discrete issues raised in this appeal.

The motion judge granted the emancipation of the two older children, effective November 3, 2006, thereby ending the father's support obligation for those two children as of that date. The judge also granted the mother's request that the father bear a portion of their daughter's educational costs, fixing his share at fifty percent. Child support for the third child, not contested here, was recalculated at $90.00 per week.

The father now appeals.*fn1 He argues that the judge should have emancipated the daughter the month that she ceased attending college, and likewise should have emancipated the son the month he finished high school. Had the judge done so, the mother would have been obligated to refund the child support she had received for those two children in the interim. The father also maintains that the judge erred in forcing him to pay half of his daughter's college and other educational expenses. He asserts that the judge should have specifically determined whether the daughter "would have attended college had the parties not divorced."

Our scope of review of determinations by the Family Part in such matters is substantially limited. "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding," and to the conclusions that flow logically from those findings of fact. Cesare v. Cesare, 154 N.J. 394, 413 (1998). We are especially deferential to rulings by Family Part judges that involve the application of discretion, and will only interfere where it is shown that such discretion has been abused. Brennan v. Brennan, 187 N.J. Super. 351, 357 (App. Div. 1982); see also Walles v. Walles, 295 N.J. Super. 498, 514 (App. Div. 1996).

With respect to the emancipation issues, the parties do not dispute, for purposes of the appeal, that the daughter ended her post-secondary studies in college and vocational school in February 2006, and that the middle child finished high school in June 2006. The judge correctly decided, consistent with the applicable case law, that both children are now "beyond the sphere of influence" of their parents and have the ability and responsibility to support themselves as adults. Fillipone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997) (quoting Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995)). However, emancipation is by no means automatic, and instead requires a "fact-sensitive" assessment by the court. Ibid.; see also Dolce v. Dolce, 383 N.J. Super. 11, 17-18 (App. Div. 2006).

In choosing November 3, 2006*fn2 as the common emancipation date for the two older children, the motion judge explicitly exercised his "discretion . . . [and] denied the [father's] request that all amounts paid to the [mother] be refunded." As the judge noted in his written statement of reasons:

The [c]court presumes that payments made by the [father] to the [mother] for child support have been used for the benefit of the children and it would create an unnecessary hardship upon the ...


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